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THE DIVORCE (FINANCIAL PROVISION) BILL 2017

There are about 110,000 divorces in England and Wales annually, and financial orders are made by the court in about one-third of them. Some are negotiating their own settlements, induced by the unpredictability of judges’ determinations. The divorce decree itself has become a largely administrative process, but the division of income and property between spouses is often contentious, long drawn out and expensive because of

the uncertainty of the basic principles in this area;

the development of the law by judges in the last 30 years (during which it has not been thoroughly debated in Parliament), and

changes in society (more women at work, divorce no longer fault based and more commonplace, civil partnerships, same sex marriage).

It is now urgent for Parliament to revisit the fundamental law governing financial provision, contained in s.25 of the Matrimonial Causes Act 1973, which lists the factors the court must take into account in determining the settlement. The reasons are:-

The law is uncertain. Decisions used to be based mainly on “need”. Equality of the spouses then became a feature in judgments; and recent decisions have added consideration of compensation, and sharing the fruits of partnership, while statutory amendments provide for pension division and a clean break between the couple, if possible. Non-binding guidance has been issued – https://www.judiciary.uk/wp-content/uploads/2018/04/guidance-on-financial-needs-divorce-2nd-edition-april-2018.pdf – but it is still too complicated for certainty. There does not appear to be a case where it has been relied on.

The leading judgments inevitably arise from “big money” cases that go to appeal, and are not necessarily helpful for low income families. We now have a largely judge-made law, which bears little resemblance to the statute, and there has been no public or democratic input. The wide exercise of judicial discretion, careful and sensitive though it is, leads to unpredictability and uncertainty, and therefore militates against mediation and settlement out of court. Judges differ with each other, and decisions conflict as new principles are enunciated. The uncertainty and unpredictability in this area is so great that it can fairly be said to offend against the rule of law.

Legal aid has been removed from this area of the law. Many parties of modest means are left unrepresented and have to attempt to litigate on their own in emotional circumstances, with no understandable or settled principles to guide them in dividing assets and income. Judges are having to intervene, which is not their task, and brings delay. Long drawn out proceedings are detrimental to children and they are costly. There are many accounts of cases where nearly all the assets are wasted on the costs of litigation. E.g. a husband was awarded £50K but was left with a bill of £490K in costs; in another the assets were £25m, costs £1.7m; in another the couple’s assets were £42K, and the wife’s costs came to £16k; assets of £4m cost £850K to settle; and there was one where the costs swallowed up the entire assets.

Organisations such as Resolution and the Centre for Social Justice have called for reform over the years, but without result. A recent Law Commission report recommended that prenuptial agreements be binding, with certain exceptions (arguably too many, for the more loopholes, the more likely it is that the agreement will be challenged: one couple recently spent £600K litigating over whether or not the prenup was binding, and another spent £2m); and they are continuing work on financial provision which they estimate will take years to complete.

My Bill will

incorporate these recommendations. It relies on the proven efficiency of Scottish and overseas jurisdictions which administer a simpler and more certain law. Indeed, England and Wales are the exception in having such an uncertain law, one that attracts overseas wives who know they will get more generous settlements here than at home, with the result that London has become known as the divorce capital of the world!

apply to all marriages and civil partnerships. It does not change the law relating to child support, which remains vital and always needs detailed and generous consideration.

make prenuptial agreements binding, as long as the parties received independent legal advice, made full disclosure and entered into the agreement at least 3 weeks before the marriage.

make postnuptial agreements binding, thereby assisting couples whose marriages are ending and who wish to sort out their arrangements themselves.

There is no evidence that marriage breakdown is encouraged by prenuptial or postnuptial agreements. Most countries where they are common have lower divorce rates than we do. It is unlikely that many couples will make them, except where there are assets from a previous marriage which they want to protect, or they are from overseas (about a quarter of marriages are second marriages and by older people). The advantages of such agreements are improved predictability of outcomes, fulfilling the public expectation that they should be able to make a binding agreement, and maybe encouraging marriage for those who, with past bad divorce experience, may be reluctant to commit again to a potentially financially ruinous position.

In so far as the couple’s assets are not dealt with by any agreement, then a system, often known as “the division of post-marital assets” will apply. There will be a presumption that a fair starting point is the equal division of all the property and pensions acquired by the couple AFTER marriage. Assets acquired before marriage, inheritances and gifts would remain in the possession of the owner and not be available for distribution. Thus in a short marriage there would be little to divide, but in a long marriage where the couple started with little, everything would be divisible. There is flexibility in the Bill to allow for the house to be retained for the accommodation of, say a mother and children under 21, or other exceptional circumstances. There are guidelines in the Bill to disentangle the situation where pre-marital assets are used over a long marriage to buy and improve marital property, so that they become post-marital assets available for division. Provision is made for only short term maintenance with exceptions (as in Scotland and Scandinavia), because maintenance is hard to enforce, relatively few orders are made (about 12,000 pa), and it is more sensible to load the separation of assets in favour of property, pensions and lump sums rather than ongoing periodical payments. Maintenance payments will be deducted pound for pound from Universal Credit and will not help the less well off, whereas payments to children will not be affected.

The result, if this Bill is enacted, should be better opportunities for mediation, less need to go to court, reduced trauma for children, lower costs, an easier time for litigants in person, and a fairer outcome recognising partnership in marriage. For the first time, it would recognise equality of spouses, rather than subjecting their claims to the view taken by a judge. Above all, it would be the result of democratic debate in Parliament and take account of public opinion and the need for certainty in the law.

“the legislation has been successful in achieving one of its aims which was to encourage parties to reach their own agreements about the financial and property consequences of divorce.

There was also strong approval for the concept of “matrimonial property”, with many interviewees highlighting the clarity and certainty of the matrimonial property regime as being an aspect of the legislation which worked well.

This is a well-designed statutory framework with no fundamental need for reform. It is regarded as combining certainty with flexibility in a way which facilitates the work of each group of legal actors who put the legislation into practice.

English law is broken and needs mending: but ours doesn’t. Ours doesn’t. Ours can always be improved, of course it can always be improved; but generally speaking, it’s a gem (quote from interviewee)”

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7 comments for “THE DIVORCE (FINANCIAL PROVISION) BILL 2017”

Baroness Deech

23/07/2018 at 5:00 am

PS A member of the public wrote to me about the issue and said this: “You have a mountain to climb and no doubt an army of lawyers will present a plethora of reasons why your proposal should fail. I pray for your success.” !

maude elwes

24/07/2018 at 12:34 pm

Brexit, in many more ways than one, has been the best move the British people have made for decades in respect of forcing Parliament to show their true goal for our country. And more than that, where our country has been led by successive hidden government policy across decades. It has proven beyond any shadow of doubt, no matter what your persuasion toward the question posed of in or out of the EU, we can at last, clearly see who and what we are electing to lead us into a future plotted secretly. In fact, Democracy, is not at all what we have been led to believe we have. What schools should teach, above all else, is Politics from a very early age. And, the videos of Debates taking place presently in the Lords should be paramount from the offset. Most especially that time consuming fiasco called ‘Debating Brexit.’ Where absolutely no debate took place at all. And how utterly incapable those in that chamber were of clarity and balance, as they pretended there was some kind of policy discussion offered. When, all they verbally managed to muster was hysteria at losing whatever gravy was in the process of being removed from their grasping mouths. Where do their interests lay? Certainly not with this nation of ours, because, it was obvious they could not grasp the concept of ‘the will of the people.’ The first move our sovereign government, post Brexit, has to do, is, investigate the financial interests of the hundreds of unelected participants being given votes to pass laws in this country of ours.

The “Divorce (Financial Provision) Bill 2017” is a deliberate piece of chaotic nonsense. And those lawyers pressing on with it know full well it goes against our freedom to prosper under our own steam. No one in their right mind would be unable to absorb that from a simple cursory glimpse.

Here is the biggest revelation we have been allowed access to. This shows, without doubt, how they are nowhere near to the heartbeat of the British people. And listen to the line offered when they were in a manic frenzy as it dawned on them the vote for out was going to show its face. The speaker in the clip says, ‘we were praying the cities were going to save us.’ Oh, really? So the ‘cities’ are where they keep their ear to the ground…. It seems the Blair, Straw and Campbell plot didn’t quite come off, this time. The future waits.

Ours is a civilisation of exceptionalism. And the world knows it, which is why they fight to come here. Even to this very day. Trouble is, they don’t love it, or us, and want to dilute its possibilities. No deal with the EU is the single deal on offer.

This scene fully explains it. And does it with the beauty only English can

First you
(and of course both the whole of the Parliamentary and Monarchic-Establishgment System and The People)
need to correct the British-Longest-Term-Strategic-Intention
to con tinue consuming and wasting five (5) times more of this Earfth’s Resources and of Other Peoples’ Lifesupports
than is our fair due.
[see “How Many People Can Live On Planet Earth” TV documentary hosted by Sir David Attenborough; and also “Doomsday 2210” by further scientific, technological, and ‘grass-roots’ groups]

The British “constitutionally-hiearchical-fantasy” also needs to not-continue-leaving-it-too-late to peacefully-revolutionarily establish us each-and-all upon a Longest-Term-“Self-&-Civilisation Co-Sustainworthying-Movement” Base.

The noble baroness is indeed a focally-hard-worker,
but alas! like the majority of us, almost “buried alive” by what one could call “historicly entrenched and constitutionally-protected Life-Problemisations”

Perhaps “What you should be doing is getting out of the marriage business altogether” –

might be a forward-looking strategicly insightful ‘snapshot’
that fits with what is arguably another ‘habitually-blind’
or ‘officially-non-negotiable-conflation’
of establishmentarian and professional political bodies –

namely the fantasy-hierarchy of “social mobility”*, which like the Marriage “bucket-of-worms” is also undisentanglably buried in the set-concretes of Constitutional Law.

But When we see that The Workplace is owned by the Employer and Academic-Politico-Economics Class,
occupies its worker only 40 hours a week,
and is “removed” – in many cases “isolated – ” from

About the Author

Baroness Deech

…was a tutor in law at Oxford University, elected Principal of St Anne’s College, and a pro Vice-Chancellor. She was also Chair of the UK Human Fertilisation & Embryology Authority, was one of the last Governors of the BBC and a Rhodes Scholarships Trustee. She was the first Independent Adjudicator for Higher Education for England and Wales and from 2008-12 was Gresham Professor of Law, London, giving lectures on family law. She was Chair of the Bar Standards Board 2009-15, and in 2009 completed a report for the Department of Health on Women Doctors – Making a Difference. She was created a life peer in 2005 and sits in the House of Lords as a cross-bench Peer. She chaired the 2016 Select Committee on the Equality Act & Disability, which reported on the impact of the 2010 Act on disabled people.